Document Type
Article
Abstract
This past term, the Supreme Court majority continued to follow a pattern of rendering transgender individuals essentially invisible in the cases that concern their rights. In last year’s United States v. Skrmetti, the transgender youth affected by the ban on transgender care were largely absent from the majority opinion holding that such bans discriminated on the basis of neither sex nor transgender status. This term, the majority continued a similar trend, deciding two cases on the emergency docket that ignored the lived experience of transgender individuals while significantly affecting them, and one case on the merits, West Virginia v. B.P.J., which also ignored the actual circumstances of the claimants and other young transgender athletes. While each of these decisions reflects a lack of empathy for the experiences of transgender individuals, it would be wrong to claim that there is no empathy evident in these opinions. Indeed, the majority demonstrated significant empathy in its decisions for other actors. Noticing to whom the Court’s empathy is directed is itself instructive in helping understand its jurisprudence. Furthermore, this term’s B.P.J. decision offers an even more instructive clue for what lies behind these choices. An approach to individual rights seen through a lens of zero-sum thinking, which the Court makes explicit in B.P.J., helps explain why the Court recognizes the feelings of some but not others.
Recommended Citation
Susan Etta Keller, Zero-Sum Empathy: The Supreme Court's 2025 Term Decisions on Gender Identity, 18 ConLawNOW 155 (2026)